2004 No. 470

DEBTDILIGENCE

The Debt Arrangement Scheme (Scotland) Amendment Regulations 2004

Made

Laid before the Scottish Parliament

Coming into force

The Scottish Ministers, in exercise of the powers conferred by sections 2(3) and (4), 4(5), 5(4), 6(1), 7 and 62(2) of the Debt Arrangement and Attachment (Scotland) Act 20021 and of all other powers enabling them in that behalf, hereby make the following Regulations:

Citation, commencement and interpretation1

These Regulations may be cited as the Debt Arrangement Scheme (Scotland) Amendment Regulations 2004 and shall come into force on 14th November 2004.

Amendment of the Debt Arrangement Scheme (Scotland) Regulations 2004

2

The Debt Arrangement Scheme (Scotland) Regulations 20042 shall be amended in accordance with these Regulations.

3

In regulation 1, for “the fourteenth day after the day on which they are made” substitute “30th November 2004”.

4

In regulation 5(1), after “shall be” insert “payable in advance and shall be”.

5

1

In regulation 7(2), at the end insert–

  • for any reason other than the resignation, or revocation or suspension of approval, of the money adviser

1

For regulation 7(4), substitute–

4

Where a money adviser has ceased to act by reason of the resignation or suspension of approval of that money adviser, that money adviser shall assist the debtor to appoint a replacement money adviser.

6

After regulation 9(3), insert–

4

The DAS Administrator shall provide written notice to a debtor of the suspension or revocation of the approval of the money adviser to that debtor.

7

In regulation 13(1), for “form 2” substitute “writing”.

8

In regulation 16(2), for “5%” substitute “10%”.

9

1

In regulation 29(2)(e)(ii), omit “and”.

2

At the end of regulation 29(2)(f), insert–

;

g

make all payments in respect of credit obtained under regulation 35(1)(b)(iv), (v) and (vi) as they fall due; and

h

give all notices and intimations which require to be given by a debtor under these Regulations

10

In regulation 30(3)(a), for “home” in the second place where it occurs, substitute “sole or main residence”.

11

In regulation 35–

a

after paragraph (1)(a), insert–

aa

subject to section 2A of the Act, the approval shall have the effect of a recall at the time specified in regulation 28(2) of any attachment of the debtor’s corporeal moveable property, and the DAS administrator shall send notice of recall in form 7(a) to each party with possession of the property attached;

b

in paragraph (1)(b), head (i) shall be omitted;

c

in paragraph (2), for “form 5” substitute “form 5(a)”; and

d

in paragraph (5)(a)(ii)–

i

for “40” substitute “40A3”; and

ii

after “1991,” insert “in”.

12

In regulation 47, for “form 12” substitute “writing”.

13

In regulation 48(1)(a), for “form 12” substitute “writing”.

14

In regulation 50, for paragraph (6) substitute–

6

An appeal–

a

to the sheriff under paragraphs (1), (2) or (3) shall be by summary application;

b

to the sheriff principal under paragraphs (4) or (5) shall be by note of appeal in accordance with rule 31.4 of the Ordinary Cause Rules set out in the First Schedule to the Sheriff Courts (Scotland) Act 19074;

c

shall be lodged within 14 days after the date of intimation to the appellant of the determination appealed against.

15

In Schedule 1–

a

in the Arrangement of Forms–

i

the entry for form 2 shall be omitted;

ii

in the entry for form 4, for “Notification to creditor of application for approval of a debt payment programme” substitute “Proposal to creditor for a debt payment programme”;

iii

after the entry for form 5, insert–

5

a

Notification to creditor of approval of a debt payment programme

iv

after the entry for form 7, insert–

7

a

Notice of recall of an attachment

v

the entry for form 12 shall be omitted;

b

Form 2 shall be omitted;

c

For form 3 (Application for approval of a debt payment programme) substitute the form set out in Schedule 1 to these Regulations;

d

For form 4 (Notification to creditor of application for approval of a debt payment programme) substitute the form set out in Schedule 2 to these Regulations;

e

After form 5, insert the form 5(a) set out in Schedule 3 to these Regulations;

f

After form 7, insert the form 7(a) set out in Schedule 4 to these Regulations;

g

For form 8 (Application for variation of a debt payment programme) substitute the form set out in Schedule 5 to these Regulations;

h

For form 10 (Application for revocation of a debt payment programme) substitute the form set out in Schedule 6 to these Regulations; and

i

Form 12 shall be omitted.

16

In Schedule 5, paragraph 6 shall be omitted.

HUGH HENRYAuthorised to sign by the Scottish MinistersSt Andrew’s House, Edinburgh

SCHEDULE 1The Debt Arrangement Scheme (Scotland) Regulations 2004

Regulation 15 (c)

FORM 3

Regulation 20(2)

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SCHEDULE 2The Debt Arrangement Scheme (Scotland) Regulations 2004

Regulation 15 (d)

FORM 4

Regulation 22(2)

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SCHEDULE 3The Debt Arrangement Scheme (Scotland) Regulations 2004

Regulation 15 (e)

FORM 5(a)

Regulation 35(2)

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SCHEDULE 4The Debt Arrangement Scheme (Scotland) Regulations 2004

Regulation 15 (f)

FORM 7(a)

Regulation 35

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SCHEDULE 5The Debt Arrangement Scheme (Scotland) Regulations 2004

Regulation 15 (g)

FORM 8

Regulation 37

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SCHEDULE 6The Debt Arrangement Scheme (Scotland) Regulations 2004

Regulation 15 (h)

FORM 10

Regulation 42(2)

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(This note is not part of the Regulations)

These Regulations amend the Debt Arrangement Scheme (Scotland) Regulations 2004 (S.S.I. 2004/[ ]) (“the principal Regulations”), which provide for a scheme for repayment of multiple debts in Scotland.

The principal Regulations provide for procedure and forms in respect of a repayment arrangement under the scheme, which on approval is described as a debt payment programme. The DAS administrator has the main responsibility for approval or rejection of applications for approval as a money adviser or payments distributor, and for approval, variation or revocation of a debt payment programme.

Regulation 3 amends regulation 1 of the principal Regulations to provide that the principal Regulations shall come into force on 30th November 2004.

Regulation 4 amends regulation 5 of the principal Regulations to provide that fees payable in respect of inspection of the register of approved debt payment programmes shall be payable in advance.

Regulation 5 amends regulation 7 of the principal Regulations to provide that a debtor does not require to give written notice to the DAS Administrator when a money adviser ceases to act for the debtor by reason of the resignation, or revocation or suspension of approval, of the money adviser. It also clarifies and confirms the duty upon a money adviser to assist the debtor to appoint a replacement money adviser when the approval of the first money adviser has been suspended or the money adviser has resigned.

Regulation 6 inserts a new regulation 9(4) in the principal Regulations imposing a duty on the DAS Administrator to provide written notice to a debtor whenever the approval of their money adviser is suspended or revoked.

Regulation 8 amends regulation 16 of the principal Regulations by increasing the administration fee which can be charged by a payments distributor from 5% to 10% of the sum due to be paid to a creditor in a distribution by the payments distributor.

Regulation 9 amends regulation 29(2) of the principal Regulations and inserts two further standard conditions that will apply to all approved debt payment programmes.

Regulation 10 amends regulation 30(3)(a) of the principal Regulations so that only the debtor’s sole or main residence is excepted when the DAS administrator is considering whether to require the realisation of an asset.

Regulation 11 amends regulation 35 of the principal Regulations by providing–

  • that attachments are recalled;

  • that awards payable under the Social Contributions and Benefits Act 1992 (c. 4) are omitted from the list of circumstances where it is permissible to give credit to a debtor;

  • that the reference in regulation 35(5)(a)(ii) to section 40 of the Child Support Act 1991 (c. 48), which does not apply to Scotland, is replaced with a reference to section 40A of the Child Support Act 1991;

  • for the use of new forms 5(a) and 7(a).

Regulation 14 amends regulation 50 of the principal Regulations to provide that an appeal to the sheriff under paragraph (1), (2) or (3) shall be by summary application and an appeal to the sheriff principal under paragraph (4) or (5) shall be by note of appeal.

Regulation 15 amends Schedule 1 to the principal Regulations by omitting form 2 (Application for approval as a payments distributor) and form 12 (Report of completion by a payments distributor). The applications and reports which were to be made using those forms are now to be made in writing (see regulations 7, 12 and 13). Forms 3, 4, 8 and 10 are omitted and replaced with the forms set out in Schedules 1, 2, 5 and 6 respectively. A new form 5(a) is inserted for notifications to creditors of approval of a debt payment programme and a new form 7(a) is inserted for notice of recall of an attachment.

Regulation 16 amends Schedule 5 to the principal Regulations by omitting the duty on payments distributors to make and maintain appropriate arrangements for customer services.